Justice John MacMenamin
Maintaining the integrity and unity of a trial process is a fundamental requirement in the administration of justice. Once a trial is commenced, that precept of uninterrupted continuity applies, whether in a prosecution before a judge and jury, or in a non-jury court. But no less important is the fundamental legal principle, arising from the Constitution itself, that an accused must not be placed on trial when there is, clearly, a real and unavoidable risk of an unfair trial. The duty of a trial judge in upholding that principle was recently, and extensively, considered in Wall v Director of Public Prosecutions  IESC 56; whether judicial review was most appropriate or effective form of remedy was left over for future consideration. In this judgment, the court must weigh and balance the two principles of continuity, and risk of unfairness, in circumstances now outlined. Hedigan J. in the High Court (Stirling v District Judge Collins  IEHC 45), declined to grant relief, essentially, on the basis that the appellant was seeking relief during the currency of a criminal trial in which the appellant was the accused.
The sequence of events
The appellant was charged with certain criminal damage and public order offences said to have occurred in the early hours of the 3rd March, 2009. Garda Monaghan, who was then stationed in Pearse Street Garda Station, stated that he observed, via remote surveillance CCTV, a group of young people in the Aston Quay area of Dublin. The group were engaged in kicking a telephone box and various shop windows. Garda Monaghan contacted another member of the force by radio. This was Garda Garrett, who arrested the appellant in Temple Bar Square, after which he was subsequently charged with criminal damage and released on station bail to appear in the District Court on the 20th March, 2009. The matter was further remanded to the 3rd April, 2009.
A précis of the prosecution evidence intended to be used in the trial in the District Court stated:
CCTV footage of the offender kicking the phone box on Aston Quay and the windows and shutters in Merchant’s Arch has been obtained.
There was no eyewitness to the alleged incident. The CCTV footage was, therefore, of prime importance in any intended prosecution. Garda Monaghan’s testimony, coupled with the recorded material, essentially was the prosecution case. It emerged later that An Garda Síochána had lost or mislaid that vital video-footage in circumstances never fully explained.
On the 3rd April, 2009, the matter came before the District Court. A garda court presenter, representing Garda Garrett, informed the court that the video tape was available in relation to the incident. The appellant’s solicitor applied to remand the matter to a mention date for the purposes of obtaining and viewing this material. The then President of the Circuit Court, Judge Malone, who presided on that occasion, refused to list the matter on a further “mention date”, but noted that the footage was available, and ordered that it was to be furnished to the defence. The appellant’s solicitor wrote, more than once, to the Superintendent at Pearse Street Garda Station and to Garda Garrett himself, seeking disclosure of relevant evidential material, including the video evidence. Judge Malone listed the matter for hearing on the 11th May, 2009, giving the defence liberty to re-enter the matter should the taped material not be provided.
Five weeks later, the appellant’s solicitor received a phone call from Garda Garrett indicating that the taped material was no longer available. Obviously, therefore, it could not be furnished to the defence. In light of this, the appellant’s solicitor wrote to An Garda Síochána, requesting them to indicate whether it was intended to continue with the prosecution. There was no written reply. The matter came before Judge Hamill in the District Court on the 11th June, 2009. On that occasion, Garda Garrett outlined the usual procedure for the storage of such evidential material at Pearse Street Garda Station. This procedure involved a process whereby anyone removing from storage such a tape “signed it out”. This particular tape had been removed without any signature. Garda Garrett informed the court that while he could not be entirely sure as to why the tape had not been signed out, he assumed it had been removed by another member of the gardaí who was investigating another matter.
The real and unavoidable risk of an unfair trial
In Wall, this court emphasised that judicial review by way of prohibition, if it is the appropriate remedy, should be granted only in exceptional cases, where evidence of prejudice is clear. Here, it could not be clearer. In this case, the gardaí held the one vital piece of objective evidence and then lost it. That piece of evidence was obviously within the “reasonable scope” of the investigation. It was the duty of An Garda Síochána to preserve it. On those facts, this case comes within the category of “lost evidence” cases (see Director of Public Prosecutions v Braddish  3 I.R. 127). The appellant’s solicitor acted promptly in requesting this material which was self-evidently relevant to the investigation (see Scully v Director of Public Prosecutions  1 I.R. 242). (A full list of the relevant authorities on this issue, and principles derived from them, may be found in the judgments in Wall. It is unnecessary to recite them here.)
Judge Hamill adjourned the matter for written submissions. The issue as to whether the trial should proceed came on for consideration before the first respondent on the 23rd July, 2009. Counsel for the appellant argued that the trial should not proceed in light of the lost evidence, and that, in its absence, there was a real and unavoidable risk of an unfair trial. A solicitor for the Director argued to the contrary effect. The first named respondent obviously gave the matter consideration. She adjourned the matter overnight. On the following day, she ruled that while she did not think the circumstances were such as to warrant restraining the trial itself, matters might arise in the course of the trial which would indicate prejudice to the appellant. The trial did not proceed further on that day – there is no indication that this had been the intention – and instead an application for leave to seek prohibition of any further trial was made to the High Court on the 27th July, 2009. As will be seen, since that point, the criminal proceedings have been stayed. On closer analysis, however, this case has an unusual, but not unique feature. It is that the application mentioned above was made in the District Court in a discrete hearing, where the issue to be determined was whether there was an unavoidable risk of an unfair trial. The case proper was not underway.
Submissions of the appellant
Before this Court, Mr. Michael O’Higgins S.C., counsel for the appellant, listed the issues of prejudice which arose. Counsel submitted that were the trial to proceed, Garda Monaghan might be in a position to state that he had ample opportunity to observe the appellant through the surveillance camera, but the defence legal team would not have had the opportunity of viewing the video footage, or the camera, or its field of vision. He submitted the question of identification could not be assessed or challenged. Counsel pointed out that this was not a situation where a garda gave an account which could be challenged against actual, available objective evidence; instead the evidence was simply lost and the very evidence which might serve to verify or contradict the garda account was denied to the appellant. Counsel submitted that what the garda saw or could see through the medium of the CCTV camera was, on any objective assessment, vital; that any attempt to challenge the garda’s testimony would raise issues as to the quality of the footage; the lighting at the place in question; visibility on the night; the clothing and features of the alleged perpetrator. It will be remembered here that the appellant was said to be one of a group of people. Other live issues would be whether the information conveyed to the arresting garda was an accurate description of the appellant, or whether some other person or people present fitted the same, or a like, description. It is said that the lost video evidence would have shown how many people were in the immediate vicinity. A question might, theoretically, have arisen whether or not Garda Monaghan had continuously viewed the camera, in circumstances where there was always the possibility for human error. Put at its simplest, counsel makes the point that this is a case where fallible human judgment and assessment could have been checked against objective evidence, and cannot now be; and that this is as a result of the neglect of An Garda Síochána. The appellant asserts his innocence, says that he was misidentified, and, consequently, that he is now deprived of the opportunity of pursuing obvious lines of defence relating to identification, the central issue in the case.
Submissions of the Director
Counsel for the Director, Mr. Tom O’Malley B.L., submitted that the judicial obligation to conduct criminal trials fairly, and with due regard to the rights of accused persons is beyond doubt. Most recently, in Wall, Denham C.J. reiterated:
It is the duty and responsibility of each judge to administer justice and conduct all hearings fairly and with due process.
However from this, Mr. O’Malley B.L. submits that there is a presumption that every judge, embarking on a criminal trial, will discharge this duty faithfully and conscientiously. He points out that this presumption applies to all courts, irrespective of the nature and scope of their jurisdiction. In Clune v Director of Public Prosecutions  I.L.R.M. 17, Gannon J. observed at p. 21:
There is, and must be, a presumption that a District Justice will apply himself to his functions and duties in accordance with his oath of office and within the limits of his jurisdiction with justice and fairness to the best of his ability.
Counsel for the Director submits that this court should refuse relief on the basis that it is to be assumed that the District Court judge will act fairly. Counsel submits that it is imperative that the unity of the trial be preserved. In Mellett v Reilly  IESC 33, this Court (Hardiman J.) held that that this “continuity principle” is equally applicable when an order is sought to prevent the continuance of, rather than the commencement of, a summary trial. The logic of the submission, taken to its ultimate conclusion, might be that a trial should always proceed on the assumption that the trial judge will act fairly.
Neither of the authorities cited precisely addresses the issue here. The real question which arises here is whether there is a real and unavoidable risk of an unfair trial to which the appellant should be exposed at all? If there is such a risk, did the first named respondent act in excess of jurisdiction in allowing the trial to proceed? A duty to avoid constitutional unfairness always arises whether it resides in the review courts or, as Wall suggests, in the trial court.
The unity of a criminal trial
Returning to the issue of continuity, it hardly needs reiteration that superior courts must not be called upon, under the guise of judicial review, to micro-manage criminal proceedings pending in other courts. Such an outcome is not consonant with the true purposes of the remedy. Accordingly, review courts must look very sceptically at an application for prohibition, if it is brought during the currency of a proceeding, which is at hearing. Continuity is a defining characteristic of a criminal trial.
In a well-known metaphor, Ó Dálaigh C.J. observed in People (Attorney General) v McGlynn  I.R. 232, that a trial should have “the unity and continuity of a play” in the sense that, once begun, the trial should proceed, without interruption, to its conclusion. That statement of general principle was made in the context of a jury trial where there had been a long hiatus as a result of the trial judge having stated a case to the Supreme Court. That a jury trial should be free of such a prolonged delay needs no further iteration or explanation. It is common sense. The same general principle has been held to apply in general to non-jury criminal trials (See Director of Public Prosecutions v Special Criminal Court  1 I.R. 60 at pp. 69-70 (High Court) and p. 89 (Supreme Court)). That self-same principle applies mutatis mutandis to the District Court.
A review court must, therefore, proceed on the basis that it is plainly undesirable that any applicant should seek judicial review during the currency of any criminal trial; but very occasionally, a matter may arise which is so fundamental that it goes to jurisdiction, that is, whether the trial should proceed at all. In fact, in Director of Public Prosecutions v Special Criminal Court, Carney J. who heard the judicial review application in the High Court, strongly deprecated the possibility that, when there are adverse rulings to an accused, a trial might be punctuated by “expeditions” to the review court. I entirely agree. However, in that case, this Court on the appeal, while again strongly deprecating the principle of any break in trial-continuity, went on to hold that, on the very unusual facts, the High Court had been correct to entertain the application for review at first instance. This was for two reasons: first, because the trial court had addressed the point sought to be reviewed as a single discrete issue – the case had been “opened” for that purpose; second, judicial review was necessary because of the importance that there should be a definitive ruling on the matter of informer privilege. There were very exceptional circumstances. Counsel for the prosecution had, in fact, been invited by the Special Criminal Court to “open” the case, purely for the purposes of giving the members of that court an idea of the issues at stake. Speaking for the Court, O’Flaherty J. pointed out, “Essentially the ruling [in the Special Criminal Court] that was sought and given was by way of preliminary ruling before the trial was embarked on”. That observation precisely describes the position in the instant case, where the first named respondent was asked to rule on the “lost evidence” question as a preliminary issue. Here, as in that earlier judgment of this Court, the trial was not interrupted, but rather judicial review was sought in regard to a discrete point, which had been addressed, considered, and ruled on at what was, effectively, the hearing of an issue. There is no doubt that the second element present in that earlier case is also to be found here. The point of fundamental importance here is whether the appellant should be exposed to a trial at all in view of the real and unavoidable risk of unfairness. The question goes to jurisdiction.
By way of contrast, in Mellett v Reilly  IESC 33, judicial review proceedings were brought in respect of District Court proceedings at a point between a finding of guilt and the ultimate decision as to sentence. On those different facts, this Court (Hardiman J.) upheld the decision of the High Court refusing relief, primarily because of breach of the continuity principle. The facts of Mellett are quite distinct from those here. In Mellett, the District Judge had indicated that he would dispose of the case, taking into account what was conceded by all parties to be an irrelevant consideration for the purposes of sentence. By contrast in this case, there is no suggestion that the respondent judge acted with anything other than with complete propriety in hearing the actual issue; but the question remains as a result of the ruling, was there a real and unavoidable risk of an unfair trial?
Judicial review is a discretionary remedy. To my mind, the circumstances in this case render it genuinely exceptional (see Byrne v Director of Public Prosecutions  IESC 54 (O’Donnell J.); and the judgments of this Court in Wall). On the facts, this case stands at a distant remove from the circumstances described in Treacy v Malone  IEHC 14, where, the High Court (Cooke J.) had to consider whether to grant judicial review in circumstances where a District Judge had heard some four hours of submissions on preliminary issues on alleged irregularities, which Cooke J. observed, were sought to be, and were entirely capable of being, decided by the trial judge in the course of the trial. The complaints raised by the applicant in Treacy were of a relatively minor nature; nonetheless, the learned High Court judge in fact did embark on a consideration of those issues, and himself ruled on them so as to ensure clarity.
But in this case, there is the exceptional clarity of the prejudice caused by the absence of what, by any standard, is vital evidence. The case must be determined on the review jurisprudence as it presently stands, stretching back to State (O’Connell) v Fawsitt  1 I.R. 362. This jurisprudence presently allows for intervention by way of judicial review in circumstances such as those here. There is a real and unavoidable risk of unfairness. That real risk arises because vital evidence is missing, which omission cannot be conceivably remedied in a trial. The hearing on the issue was a preliminary one. These unusual features render the case exceptional.
Prejudice to the appellant
This is not just a case where prejudice and, therefore, risk is probable, but rather it is inevitable. The entire essence of the prosecution and defence must be identification; the only objective verifying evidence has become lost through neglect and failure to preserve the material. None of the “list” of issues identified by counsel for the appellant, set out earlier in the judgment, can, therefore, be properly pursued at trial. Instead, a District Court judge will, inevitably, be faced with a procedural impasse; the reliability of the main witness as to fact cannot be tested in the most obvious way. The defence will be prevented from relying on evidence, which it was the duty of the gardaí, not only to preserve, but to make available both to the defence and to the court (see Braddish, and the other authorities to that effect cited in Wall). To the extent that the precept of continuity applies, it must, in this exceptional instance, yield to the vindication of the appellant’s constitutional right to a fair trial in the circumstances where the trial simply should not proceed. This is because a main building-block of the case, material plainly within the reasonable scope of the investigation, has been lost by the prosecution.
In the circumstances, I conclude that the learned High Court judge erred in this instance in declining to grant judicial review. I would allow the appeal and grant the relief sought.
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